The growing chorus of sexual harassment allegations is finally being heard on Capitol Hill. Sen. Al Franken (D-Minn.) is resigning. Rep. John Conyers (D-Mich.) resigned, Rep. Blake Farenthold (R-Texas) is returning his $84,000 settlement to the taxpayers, and after first saying he would leave Congress early in the new year, Rep. Trent Franks (R-Ariz.) abruptly left office last week. While the need to review operations of the Office of Compliance initiated a swift and appropriate response from the House Administration Committee, and we look forward to their findings, it is clear from our experience that Congress can do even better.
Twenty years ago, when we were supporting the bipartisan congressional effort to create the Office of Compliance (Betsy as chief of staff to Rep. Christopher Shays (R-Conn.), the author of the bill, and Meredith as a reform advocate supporting the legislation), the argument was simple: Congress should live by the same laws it imposes on the executive branch and the private sector, and Congress will write better laws when it has to live by the laws it writes.
{mosads}This seemed straightforward, until the Contract with America catapulted Republicans into the majority for the first time in 40 years. We suddenly only had eight weeks to turn that first provision of the contract into legislative language that both had a meaningful enforcement mechanism, and was also able to pass the House and Senate. The instinctive response from many members on both sides of the aisle was fierce. “Are you crazy? We can’t live by those laws. They are too onerous,” they said. Supporters responded, “Then how can you expect anyone else to live by them?”
To make the bill meaningful, it was necessary to ensure the right to judicial review. But to secure support of the skeptics, we had to first provide the “cooling off period” offered by the mediation process. Our task was complicated by congressional oversight. The Equal Employment Opportunity Commission, which enforces laws against workplace discrimination, has no jurisdiction over the legislative branch due to separation of powers. Members of Congress are also protected by the Constitution’s “speech or debate” clause from prosecution for statements made in conduct of their official duties. Should members of Congress be prosecuted if, while representing their constituents, someone finds what they say offensive? Imagine gumming up any ethical oversight on Capitol Hill with frivolous claims brought for purely political purposes.
But just because the process can be politicized doesn’t mean it always has to be. Regular, transparent reporting of claims and awards against members and legislative branch offices was commonplace in the early years of the act’s implementation through its annual report. The advent of much more user-friendly technology could enable immediate notification of employee rights as soon as their email address is set up, along with regular email notifications that do not rely on a staff assistant to remember to post that poster over the copier. Payments of awards to claimants, from the same fund used to pay the claims awarded to all federal employees, could and should be again disclosed as part of this annual reporting process.
Now remember, the Office of Compliance represented progress. In 1995, there was no legal guidance for classifying certain positions as eligible for overtime, much less paying for it. There was no parental leave policy beyond what individual offices might create on an ad hoc basis. There were no civil rights or equal pay protections at all. Unfortunately, the Congressional Accountability Act did not adequately anticipate the dynamic between accusers and the victims of sexual harassment and discrimination, and in particular, that a victim would have to work side by side with the accuser, potentially fearful of reprisal, while simultaneously undergoing lengthy “meditation.”
While office policies may now be more consistently and clearly defined, outlets for safely and anonymously addressing harassment or discrimination are not because loyalty on Capitol Hill is so important. Although the Office of Employment Counsel offers guidance, more offices could be proactive in utilizing its services to address unhealthy, or worse, workplace environments. Even without more regular oversight hearings or statutory reform, the Office of Compliance could, tomorrow, more aggressively communicate its existence to individual employees, too. Is policies can and should be more regularly reviewed to flag outdated practices that are detrimental to the office or those it aids.
Congressional staff and members of the House and Senate deserve a stronger, more transparent Office of Compliance to better protect both the offices and the integrity of Congress. The Congressional Accountability Act of 1995 was a good start, but in 2017, Congress can do better. Congress and the American public must capitalize on this moment to initiate institutional change.
Betsy Wright Hawkings served as a chief of staff to Republican members for more than 25 years, including 20 years for Rep. Christopher Shays, author of the Congressional Accountability Act. She is director of the governance program at Democracy Fund.
Meredith McGehee is the executive director of Issue One. She previously worked on Capitol Hill and advocated and lobbied for democracy reforms for more than 30 years. She also serves as strategic advisor to the Campaign Legal Center.